The Kingston-Whig Standard, February 15, 2000

Old mine center of legal action
Sue Yanagisawa, Whig-Standard Staff Writer
Tom Wells has one question for the provincial Ministry of the Environment.If there are no health risks associated with living in Deloro, why did ministry workers need to wear radiation suits to examine several contaminated “hot spots” in the village – after a ministry study of health risks was released?

Just last summer, the ministry released its conclusions following an eight-month study in the village of about 180 people, 60 kilometres northwest of Belleville.

Though a former mining and refining property there had been designated by two levels of government as a “high-risk contaminated site” in 1991, the study concluded village residents face no more significant health risks than other Ontario citizens.

If that’s true, Wells is curious why the construction crew that laid an extension to the natural-gas pipeline through the village last year needed to wear containment suits. Wells claims the crew that installed the original line, two or three years ago, dressed in ordinary work clothes.

A retired bank manager who lives just north of Marmora on property where he once had a cottage, Wells bought two houses in nearby Deloro in 1994. His son now lives in one of them.

Wells says he made inquiries about the impact of the mine site before making the purchase and received assurances from the environment ministry that there was no problem with contamination.

He now questions the validity of those assurances. Wells and 54-year-old Deloro resident Brenda Brett have filed notice of a civil lawsuit against a slew of provincial and federal ministries, including the Ministry of Environment, the Atomic Energy Control Board, Canada Eldor (formerly Eldorado Nuclear Limited) and BOC Canada Limited, a multi-national corporation that Wells and Brett believe to be a successor through acquisition to previous owners of the site, Deloro Smelting & Refining Company Limited.

After pronouncing its finding that there are no health risks associated with living in Deloro, the ministry promised that approximately $1.66 million would be spent there “in the short term” to maintain drinking water safety in the village, to reduce radon gas, remove pockets of contaminated soil and fence the mine site.

Wells said workers completed the $800,000 chain-link fence late in 1999, but “it’s too little, too late.” He’s learned through his research during the last 13 months that the site was supposed to be fenced and cleaned in the 1950s. For years, Wells believes, the government sat on reports about toxic metals, such as arsenic and radioactive ore tailings, left piled and drifting around the site.

The government did nothing, he says, while “our kids were sliding down the mine site on toboggans into the soft, yellow snow that never froze.”

The environment ministry is just now erecting its own signs, warning people to stay off the defunct mining and refining site. Activists with the Environmental Bureau of Investigation posted the first radiation warning in early 1999, within rock-throwing distance of the little village library and community hall.

The bureau – whose membership includes Janet Fletcher, the person who brought to light Kingston’s Belle Park pollution case – found evidence of picnicking and children’s play while they were taking readings with a Geiger counter along the edge of the former mining site. Those readings form part of the evidence in a charge laid under the Environmental Protection Act in November 1998 by bureau member Tom Adams, who is also the executive director of Energy Probe. That case is still before the court.

Yet, even after everything that’s happened, Wells said villagers were stunned when the ministry came to excavate the “radiation hot spots in the village proper” and they learned one was right next to the children’s playground.

The whole time it was undertaking the risk assessment process, Wells said, the ministry didn’t tell anyone where those hot spots were.

Wells and Brett have hired lawyer Douglas Cunningham of the Toronto firm of Gardiner, Roberts. Early last month they filed a statement of claim with the Ontario Superior Court of Justice in Toronto, seeking $55 million in general and punitive damages and court orders to ensure the mining and smelting site is finally cleaned.

They’ve also given notice to the court of their intention to seek certification of their lawsuit as class action under the Ontario Class Proceedings Act.

Affidavits are now being gathered in support of their motion, which their lawyer expects to file some time between April and June. If his clients are successful, Cunningham said, at least 500 properties and several thousand people affected by the old mining site could be covered by any compensation order that might result.

The claim statement identifies all of the property owners and occupants of residential properties in and near the village of Deloro as potential claimants in the suit, as well as the owners and occupants of properties “that border or encompass” the Moira River and Young’s Creek, from the Deloro site to Moira Lake and including properties on the lake to the dam at its east end.

If they don’t receive certification, Wells said, it’s unlikely any of the affected property owners, such as himself, could afford to take on the fight.

Paying what the village homes are actually worth, Wells said: “I think you could buy the whole village for under eight million bucks.” With the environmental problems in the open, he said property owners who paid $80,000 for their homes a decade ago and improved them over the years would be lucky to sell them for $15,000. He paid $74,000 and $79,000 for his two houses and wouldn’t expect to retrieve a quarter of their value now, providing he could even find a buyer, he said.

DON’T DRINK THE WATER

Last summer, without admitting there’s anything wrong, the Ministry of Environment advised property owners around Moira Lake not to drink the water or eat the fish, according to Wells.

The ministry is still studying the degree to which arsenic and other toxic metals from the Deloro operations have affected the lake’s ecosystem. Arsenic has been found in sediment about 45 kilometres downstream, where the Moira empties into the Bay of Quinte after passing through Tweed and Belleville.

The Bay of Quinte is home to a valuable sport fishery and was officially designated in the 1980s as a Great Lakes “area of concern” by the International Joint Commission. It’s been a Remedial Action Plan area since the 1980s, as well, and a substantial amount of money and more than a decade of work have already invested in its cleanup.

“Our whole case is based on disclosure,” Wells said. He and Brett contend that those in control of the mining site have had an ongoing obligation to rehabilitate the property dating to the 1950s and a duty to inform the public, particularly those living nearby, about the condition of the site and the nature and extent of its contamination.

The statement of claim he and Brett have filed with the court contends that those in control of the site failed to fulfill those obligations. As a result, people in Deloro and downstream continue to suffer substantial interference in the use and enjoyment of their properties while the value and marketability of those properties has declined. They also claim emotional distress and unacceptable risk to their health and safety.

The ministry is already defending itself in court against two- and three-year-old charges laid by the Environmental Bureau of Investigation under the Fisheries Act, the Ontario Water Resources Act and the Environmental Protection Act over contaminants alleged to be flowing out of the defunct mining site.

Prosecution of the case was ultimately taken over by the provincial attorney general and the trial began last year in an Ottawa courtroom. It’s been in recess and is due to resume for about 10 days, beginning Feb. 28. Then it will recess again, until August. The prosecution evidence was all presented in the first two days.

Both the current court case and the pending civil action allege the old mining site served as a dumping ground for low- level radioactive wastes in the 1940s and 1950s. They also both claim that the property’s owner was permitted by government to abandon the site: By then, the land and its buildings had been transferred to a “shell” corporation that responded to orders for a cleanup by declaring that it had no money and no other assets. The government of Ontario officially took possession of the site in 1979 after overseeing it for many years.

Wells, Brett and the bureau have accumulated a wealth of information about the Deloro property’s history, up to the last phase of its working life, when it was processing and storing radioactive materials.

The bureau and its law firm, Sierra Legal Defence Fund, ran into a roadblock when they tried to find out the extent of the Atomic Energy Control Board’s involvement with the site. A Freedom of Information request revealed that the board has about 47,000 pages in its files relating to Deloro since the 1970s, but the estimated cost of copying it is $40,000. When the environmentalists asked, they were told a free peek was out of the question.

Cunningham, the lawyer, believes the board will have to produce those records and divulge the extent of its involvement with Deloro in response to the civil claim.